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DIRECT LEGISLATION 



THE 
INITIATIVE and REFERENDUM 

BY 
JOHN Z. WHITE. 



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DIRECT LEGISLATION 



THE 
INITIATIVE and REFERENDUM 

BY 
JOHN Z, WHITE. 



ReprkKed from the PUBLIC, 



H. H. TIMBY, 

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CONNEAUT, OHIO, 



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John Z. White. 



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i^IRECT LEGISLATION. 

The referendum seems generally to be misun 
• lerstood. People apparently believe It t© be some- 
thing strange — a new device, whose merits and 
demerits are vague and uncertain. In truth it is 
a plan universally followed in all parliamentary 
bodies. Without it parliamentary law is impossible. 
Its absence from legislative assemblies is possible 
only through the substitution of that meanest and 
most irritating of all tyrannies, the rule of the 

gavel. 

The referendum and initiative are the means 
by which self-government is secured by any group 
of men under any conditions whatsoever. Inter 
t'erence with these is just so much subtracted from 
the fact Qf self-government. 

In deliberative bodies a chairman is selected 
to preside. His duty is upon demand to enforce 
the rules that may be adopted. If any decision 
rendered by him is thought to be in violation of 
these rules any member may appeal from such de- 
cision to the whole body. This is the referendum. 
In the absence of this right of appeal the presid- 
ing officer practically can do what he pleases. 

If a member wishes action on any matter lie 
makes a motion to that effect, and this, on receiv- 
ing the support of a second member, is placed be- 
fore the body for consideration and adoption or 
rejection. This is the initiative. In the absence 



of this right to "move," members are without 
power to act. 

If the people of a city, state or the nation, are 
in truth to be self-governing it seems inevitably 
to follow that they must have at hand the means 
of making the government do their bidding. The 
people of the city of Chicago, for instance, votecf 
in favor of public ownership of their street car 
system, but their board of aldermen were able 
to thwart the popular desire. The people of Phil- 
adelphia, and many other places, have repeatedly 
found themselves unable to achieve their wish. 
To many, self-government has for such reason 
come to be looked upon as an iridescent dream. 

This pessimistic view arises from the fact that 
we are possessed of but part of the necessary ma- 
chinery of self-government. We are like an engi- 
neer who has all essentials save the governor. His 
engine will "go," but its action is beyond orderly 
control. 

The initiative and referendum, taken together. 
are called direct legislation. That is, just as in 
any deliberative body, if the usual machinery does 
not produce desired results, the body can act di- 
rectly. So, if our city or other government does 
not act rightly, the body of the people, when pos- 
sessed of the machinery of direct legislation, can 
act, or legislate, directly. Without this power 
they are not really self-governing. 
.The Initiative. 

It is proposed, therefore, to give to a certain 
percentage of the qualified voters in any political 
body the power to prepare and present petitions 
for proposed laws to the whole body of voters. 
This is the exact equivalent of a motion in any 
club or society, save that a considerable number 

4 



of "seconds" is required. That is, each signer of 
the petition really "seconds" the motion to adopt 
the matter proposed in the petition. Such action 
is the initiative. 

It is sometimes said that the people need only 
to elect officials favorable to desired laws, and that 
thereby all need for the device known as the in- 
itiative will vanish. The fallacy in this position 
comes from the fact that our officials have many 
duties. An officer may be highly esteemed and 
very satisfactory in nearly all relations, but at tlie 
same time be quite at variance with the people on 
some question held by them to be important. Why 
shall we maintain a system that either deprives us 
of the efficient officer, or of a measure that we be- 
lieve to be expedient? 

An officer was elected by a majority of two to 
one, although he declared himself opposed to a 
policy that the same constituency favored by a 
vote of three to one. The opposing candidate*, 
meanwhile, had declared in favor of this policy. 
The explanation is simple. Other issues were, in 
the opinion of the voters, sufficiently important to 
force 'this matter into the background. If possessed 
of the power to initiate legislation, the voters could 
also secure the adoption of the policy they pre- 
ferred. They were, in fact, but partly self-govera- 
ing. 

The Referendum. 

It is also proposed that the people shall have 
power, expressed by petition, as explained in the 
above reference to the initiative, to promptly pro- 
pose the defeat of acts of legislation deemed by 
them to be unwise. If a measure has been enacted 
by the legislature, a petition may be prepared within 
% stated time (perhaps 90 days) and signed by the 



given percentage of qualified voters, whereupon it 
shall be submitted to the people for adoption or 
rejection. This is exactly equivalent to "an appeal 
from the chair." The matter may be placed before 
the people at a special election or at the next gen- 
eral election. 

It is sometimes urged that under such a plan 
the people would be voting all the time and on all 
manner of questions. In fact, the referendum, 
where adopted, is seldom resorted to. Legislators 
are careful when they know the people can reverse 
their dqings; and, very much more important, lob- 
byists are not inclined to use their peculiar powers 
of persuasion on members of legislative bodies 
when they know there are watchful citizens intent 
upon the defeat of their nefarious schemes, and 
with full power to defeat them if the people so will. 

Legislators are usually elected for two years, 
and the people, who are the principals, have no 
control, of their agents save by criminal or im- 
peachment proceedings — and constitutional guar- 
anties, which are subject to court interpretation. 
Would any rational business man give to an agent 
or agents complete control — equal to an irrevoca- 
ble power of attorney — of his establishment for 
two years? If he continued this practice, with no 
power save to change his attorney every two years, 
how long would his establishment continue to be 
his property? 

The referendum will not only cure legislative 
rascality, but in even greater degree will operate 
as a preventive. Would a railroad corporation 
bribe a legislative body to enact injurious monop- 
oly laws if it knew the people would in all proba- 
bility rescind such act within a few weeks or 
months? It would not pay. The corporation 

6 



would merely lose the money spent to secure ieg- 
islative privileges. 

Legislative Obstruction. 

With the initiative and referendum the will of 
the people cannot be thwarted by indirect methods. 
In the legislature, "pigeonholing" and obscure 
amendments frequently divert or even reverse the 
effect of a law as first introduced. A bill, on be- 
ing presented to the legislature, is referred to a 
committee. Unless those interested in its adoption 
are sufficiently powerful to overcome any opposi- 
tion that may appear, the bill is never heard of 
again — it is "pigeonholed." 

If forced from the committee, and its enemies 
cannot out-vote its friends, it may be placed so far 
down on the list of bills that the day of adjourn- 
ment arrives before it is acted upon. Failing to 
stop the bill by these methods, amendments are 
proposed, and it often happens that a few mem- 
bers are (or profess to be) convinced the amend- 
ments are desirable, when in fact they render the 
whole bill useless. 

If the bill finally gets through one house, it 
must travel the same course in the other. Failure 
of the two houses to agree often leads to a confer- 
ence committee from both — with, of course, another 
opening for clever minds. 

After all this the bill may still be vetoed. Later 
still it must run the gauntlet of the courts. 

All of these indirect methods of obstruction are 
avoided by the initiative and referendum. A bill 
properly signed and filed goes to the people without 
obstruction. The people either adopt or reject. 
All opportunity to deceive or poison is eliminated. 

7 



Direct legislation is merely the application to 
our public affairs of those methods that experience 
has shown best suited to attain the end desired. 
That end is self-government. Do we want self- 
government? It sometimes seems problematical. 
Capable men who oppose direct legislation can ex- 
plain their attitude only on the ground that the 
people, in their judgment, are not capable of man- 
aging their own affairs. Such men are tories. 
They have no proper place in the American scheme 
of government. 

If it be held that we have in fact conducted 
this government for above a century without direct 
legislation and that we may safely continue "in 
the path our fathers trod," we would call attention 
to the fact that in nothing else are we satisfied 
with the ways of our fathers. They used the ox 
cart — we don't. Just as we have improved on our 
father's- mechanical appliances, without violence to 
the principles of mechanics, so it may be possible 
to improve on governmental machinery without in 
any way altering the correct principles of govern- 
ment which we inherit. 

The principle of the first locomotive is identical 
with that of the last. The changes have all been 
in the elimination of defective methods in detail, 
to the end that the essential principle involved 
might be more fully realized. Why is it not the 
part of wisdom to eliminate like defective details 
in the machinery of our government? 

Again, when we remember that for the first 
time in history self-government on a large seal* 
is attempted in America is it at all surprising that 
the machinery first installed is defective in detail? 
Would it not be profoundly astonishing if that ma- 
chinery were not defective? 



Two Theories of Representation. 

There are two theories of representative gov- 
ernment. One is that we elect superior men to 
legislative office, whose function is to enact laws, 
for the regulation of our industrial and police af- 
fairs. The other theory is that we elect represen- 
tatives to legislate in obedience to our wishes, to 
the end that the people shall rule themselves. 
Each theory has found support in the thought and 
practice of the people of the United States. In the 
beginning State constitutions were short, being 
usually merely a statement of the bill of rights and 
accepted constitutional principles. Legislative au- 
thority thus but slightly checked became aggres- 
sive. Endeavoring to hold the activities of their 
representatives within proper bounds, the people 
amended the State constitutions, and quite general- 
ly called conventions to draft new constitutions. 
This practice was repeated until these State char- 
ters have grown from 1,000 or 1,500 words to the 
latest — that of Oklahoma — which is about 60,000 
words in length. This whole procedure is evidence 
of the persistency with which the people struggle 
for genuine self-government. For more than one 
hundred years they have struggled to bring their 
legislatures into subjection. The means adopted 
has been a large increase of constitutional limita- 
tions. But in addition an increasing number of 
matters have been made to depend directly on the 
political action of the people themselves. In most 
States constitutional provisions are referred to pop- 
ular vote. In many the people vote directly on 
loaning public credit, expenditure of money, city 
charters, granting franchises, methods and rates 
of taxation, subdivision of counties, organization of 



townships, highway control, public aid to private 
enterprise, Sunday closing, local option, civil ser- 
vice, direct primaries, and many other matters. 

Direct legislation is the principle underlying 
this latter movement. It is in fact, safe guarding 
liberty by means of live men, rather than by dea<l 
forms. 

Representative Government Not a Failure. 

We are supposed to possess popular self-govern- 
ment. But in fact the hindrances to its realization 
are so many as to cause a considerable percentage 
of our voters to despair. Capable men, who are 
earnest in their studies and in their efforts to im- 
prove existing conditions, are heard to declare that 
representative government has proved a failure. 
That these men are hasty is no doubt true; but, on 
the other hand, the evidence of seemingly almost 
fatal defects in our governmental machinery is 
overwhelming. 

Why was it necessary to battle so many years 
in order to secure the interstate commerce com- 
mission? Was it not because the people had no 
means by which they could directly express them- 
selves on that one question? The people must ex- 
press themselves through representatives, and these 
have many duties, to engage their attention. 

The resulting situation is that the representa- 
tives are not under positive command to do any 
one particular thing — are not even certain as to 
the desires of their constituencies. These condi- 
tions inevitably give to political machines a con- 
trolling power, that, among a truly self-governing 
people, should reside with the voters alone. We 
have no reason whatever to despair of popular self- 
government until it shall first have had full and 

10 



adequate trial under the most favorable circum- 
stances, or in conditions giving the people every 
opportunity, when in their judgment the need 
arises, to completely control governmental action. 

The intent of our governmental structure is 
right. Its defects are wholly in the details of ad- 
ministration. These are not of uncertain or in- 
definite character, but easily perceived, and as eas- 
ily understood. So long as city or state legislative 
bodies may grant a privilege in highways — com- 
monly known as a right-of-way — and the courts 
continue to declare such grant to be a contract, 
thus placing it beyond the reach of sovereign 
States, the people are helpless, unless we secure 
possession of the machinery for direct legislation. 

Why should any man who believes in popular 
self-government hesitate to claim the right to re- 
view legislative action? Does he not know what 
he. desires the legislature or the city council to do? 
If he does not, why does he vote? 

Let us then recognize the very evident fact that 
the machinery originally installed for the realiza- 
tion of popular self-government is in some respects 
insufficient for the intended purpose. Let us ob- 
serve that this insufficiency has been fully over- 
come by the commonly known and plainly correct 
methods of customary parliamentary law. 

Having arrived at a clear knowledge of the sim- 
ple remedy for the difficulty, let us demand that 
it be applied — and at once. We demand the in- 
itiative, that we may carry our will into effect 
when legislative bodies fail or refuse to act. We 
demand the referendum, that we may resist legis- 
lative action when contrary to the popular will. 

In other words, we demand the continuance of 

11 



islation. We want representative government as a 
mere matter of convenience — but demand direct 
legislation as our natural and inalienable right. 
The Missouri Law. 

At the recent election the people of Missouri 
adopted the initiative and referendum by inserting 
the following clause in their constitution: 

The Legislative authority of the State shall be 
vested in a Legislative Assembly, consisting of a 
Senate and House of Representatives, but the peo- 
ple reserve to themselves power to propose laws 
and amendments to the Constitution, and to enact 
or reject the same at the polls, independent of the 
Legislative Assembly, and also reserve power at 
their own option to approve or reject at the polls 
any act of the Legislative Assembly. 

The first power reserved by the people is the 
Initiative, and not more than eight per cent of the 
legal voters in each of at least two-thirds of the 
Congressional districts in the State shall be re- 
quired to propose any measure by such petition, 
and every such petition shall include the full text 
of the measure so proposed. Initiative petitions 
shall be filed with the Secretary of State not less 
than four months before the election at which they 
are to be voted upon. 

The second power is the Referendum, and it 
may be ordered (except as to laws necessary for 
the immediate preservation of the public peace, 
health, or safety, and laws making appropriations 
for the current expenses of the State government, 
for the maintenance of the State institutions and ! 
for the support of the public schools) either by the 
petition signed by five per cent of the legal voters 
in each of at least two-thirds of the Congressional 
districts in the State, or by the Legislative Assem- 
bly, as other bills are enacted. Referendum peti- 
tions shall be filed with the Secretary of State not 
more than ninety days after the final adjornment 
of the session of the Legislative Assembly which i 
passed the bill on which the referendum is de- 
manded. 

The veto power of the governor shall not ex- 

12 



representative government with optional direct leg- 
tend to measures referred to the people. 

All elections on measures referred to the peo- 
ple of the State shall be had at the biennial regular 
general elections, except when the Legislative As- 
sembly shall order a special election. 

Any measure referred to the people shall take 
effect and become the law when it is approved by 
a -majority of the votes cast thereon, and not other- 
wise. The style of all bills shall be: "Be it en- 
acted by the people of the State of Missouri." 

This section shall not be construed to deprive 
any member of the Legislative Assembly of the 
right to introduce any measure. 

The whole number of votes cast for Justice of 
the Supreme Court at the regular election last pre- 
ceding the filing of any petition for the Initiative, 
or for the Referendum, shall be the basis on which 
the number of legal voters necessary to sign such 
petition shall be counted. Petitions and orders for 
the Initiative and for the Referendum shall be 
filed with the Secretary of State, and in submitting 
the same to the people he, and all other officers, 
shall be guided by the general laws and the act 
submitting this amendment, until legislation shall 
be especially provided therefor. 

The People Act With Moderation. 

The acts of the people with the machinery of 
direct legislation will compare very favorably with 
the activities of legislatures, as is shown by the 
list of measures adopted during the last three elec- 
tions by the people of Oregon: 

On June 3, 19 02, the initiative and referen- 
dum were added to the constitution of the State of 
Oregon, by a favorable vote of 62,024 for and 
o,668 in opposition. The total vote for officers 
at the same election was 92,020. Thus a trifle ove*' 
<2 per cent, of the total vote was cast on thp 
amendment. 

. Two years later, 1904, two laws were sub- 
mitted under the provisions of the new amendment. 
One was for the direct nominations of officers bv 
the people, and it was adopted hy a vote of 56,205 
to 16,354. The other law was for local option in 



opposition to the liquor interests. The temperance 
people were successful by a vote of 43,316 to 40,- 
198. The total vote was 99,315, giving slightly 
over 84 per cent, as the vote on the temperance 
measure. 

In 19 06 eleven laws were submitted to the 
people. The vote on equal suffrage was over 84 
per cent, of the total, and the measure was lost 
by 3 6,9 02 to 47,075. This proposal carried in 10 
counties and lost in 2 3. 

The liquor interest attempted to reverse the 
temperance vote of 19 04, but suffered a more em- 
phatic defeat in a vote of 35,297 to 45,144. 

A third proposal was to sell an old road to the 
State (under the popular cry of public ownership), 
but an adverse vote of 44,527 to 31,525 defeated 
the scheme. 

An appropriation by the legislature was held up 
by referendum petition, but the people sustained 
the legislature by a vote of 43,918 to 26,758. 

An amendment of the constitution to enlarge 
the scope of the initiative and referendum was 
adopted by 47,661 to 18,751. This carried in 
every county, as did the six following measures: 

A constitutional amendment giving cities and 
towns power to enact and amend their charters 
subject to the State constitution, adopted by a vote 
of 52,567 to 19,852. 

A constitutional amendment for the initiative 
and referendum on local, special and muncipal 
laws, by a vote of 47,678 to 16,735. 

A constitutional amendment allowing the State 
printing and binding to be regulated by law, by 
63,749 to 9,571. 

A law prohibiting free passes and discrimina- 
tion by railroad companies and other public service 
corporations, by 57,281 to 16,779. 

An act requiring sleeping car, refrigerator car, 
and oil companies to pay an annual license upon 
gross earnings, by 69,63 5 to 6,441. 

An act requiring express, telegraph, and tele- 
phone companies to pay an annual license upon 
gross earnings, by 70,872 to 6,300. 

On June 1, 1908, nineteen proposals were sub- 

14 



mitted, in Oregon. Four of these were referred to 
the people by the legislature; four were ordered 
by referendum petition, and eleven by initiative 
petition. Of the whole, seven were defeated and 
twelve adopted. 

The total vote cast at this election was 116,614. 
The largest vote cast on any of the nineteen pro- 
posals was 95,528; the smallest 70,726. 

The four matters referred by the legislature 
to the people were: 

An amendment allowing State institutions to 
be erected elsewhere than at the seat of govern- 
ment, adopted by 41,975 to 40,868. 

An amendment changing time of holding elec- 
tion from first Monday in June to first Tuesday 
after the first Monday in November, adopted by 
65,728 to 18,590. 

An amendment allowing increased compensa- 
tion to members of the legislature, defeated bv 
68,892 to 19,691. • 

The four matters ordered by referendum peti- 
tions were: 

An amendment to increase numbers of mem- 
bers of supreme court, defeated by 50,591 to 
30,243. 

An act giving sheriff the right to feed prisoners 
at a per diem rate, adopted by 60,44 3 to 3 0,333. 

An act requiring railroads and other common 
carriers to furnish free transportation to certain 
state and county officials, defeated by 59,406 to 
28,856. 

An act appropriating $25,000 annually for four 
years for State armories, defeated by 54,848 to 
33,507. 

The eleven measures proposed by initiative pe- 
titions were: 

An act protecting salmon and sturgeon during 
certain seasons and from traps, adopted by 46,582 
to 40,720. 

An act protecting salmon and sturgeon from 
gill nets in parts of the Columbia river and tribu- 
taries, adopted by 56,130 to 30,280. 

An amendment permitting the "Recall" after 
six months in office, adopted by 58,381 to 31,002. 

A lav/ directing legislators to follow the popu- 
15 



!ar choice for United States senator, adopted bv ^ 
69,668 to 21,162. ■ ® 

An amendment permitting proportional repre-Sl 
mentation, adopted by 48,868 to 34,128. El 

A law against corrupt practices and limiting « 
election expenditures, adopted by 54,04 2 to 31.3 01 § 

A law preventing criminal trial save upon grant! ® 
jury indictment, adopted by 52,214 to 28,487. oi 

A law creating the new countv of Hood River <0 
adopted by 43,948 to 26,778. ' ® 

An amendment to give equal suffrage defeated -J 
by 58,670 to 36,858. 

An amendment to allow towns to regulate liq- i 
nor trade, defeated by 52,346 to 39,442. 

An amendment exempting certain forms of 
property from taxation, defeated by 60,871 to 32*.- 
tiSG. This measure was urged by the single taxers. 
A Conservative Approval. 

Justice David Brewer said in his New York ad- 
dress: 

"The two supreme dangers that menace a dem- 
ocratic State are despotism on the one hand and 
mob rule on the other. 

"The more constant and universal the voice of 
the people makes itself manifest, the nearer do -we 
approach to an ideal government. The initiative 
and referendum make public opinion the controll- 
ing factor in the government. The more promptly 
and the more fully public officers carry into effect 
such public opinion, the more truly is government 
of the people realized." 

Tories everywhere oppose the rule of the plain 
people. The claim is set up that they are incom- 
petent. So said Charles I, so said Louis XVI. 
So say all tories today. And yet the world's his- 
tory bluntly tells the story of meanness, miserv 
and fraud wherever power has been placed with the 
few, while peace, good will and joy have ever at- 
tended those peoples whose governments were 
equally participated in by all. 

JOHN Z. WHITR. 



